NO. 12-14-00302-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CORRINE AUGUSTINE NICHOLS

HILL SHEARER,

APPELLANT

V.

DAVID SHEARER, INDIVIDUALLY

AND AS INDEPENDENT

ADMINISTRATOR OF THE ESTATE

OF JOHN WILLIAM SHEARER, III,

APPELLEE

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW NO. 2

GREGG COUNTY, TEXAS

MEMORANDUM OPINION

Corrine Augustine Nichols Hill Shearer appeals the trial court’s judgment in favor of

David Shearer, individually and as independent administrator of the estate of John William

Shearer, III. Corrine raises two issues on appeal. We affirm.

BACKGROUND

Corrine married David’s father, John, in 1990, when David was a young adult. In

February 2008, Corrine and John divorced, although they continued to cohabit.1 John had long-

standing health issues and on November 2, 2009, sought care at Overton Brooks VA Medical

Center in Shreveport, Louisiana. Corrine accompanied John to the Shreveport VA where he was

found to be seriously ill and admitted. Corrine told the Shreveport VA staff that she and John

were divorced. Consequently, according to medical records, Corrine was informed that she

1 Corrine claimed at trial that they continued to live as husband and wife after their divorce, and that she

was John’s common law wife. She stated at trial that they cohabited and that they represented themselves to others

as husband and wife. However, she acknowledged in her deposition that they did not intend to live as husband and

wife after their divorce. Nevertheless, David admitted that the divorce was primarily for financial reasons and they

continued to act as a married couple “for the most part.”

2

would not be able to make decisions on John’s behalf. Corrine submitted John’s general power

of attorney, but according to the social worker, the document did not authorize Corrine to make

medical decisions for John. John also had another child, Wendy, but she did not regularly

maintain close contact with John and Corrine. Therefore, the social worker told Corrine that

David had the authority to consent to medical procedures for John since he was John’s closest

available relative. The social worker called David and left him a voicemail informing him of his

rights.

While at the Shreveport VA, John’s condition continued to deteriorate and on

November 5, 2009, he was transported by helicopter to Michael E. DeBakey VA Medical Center

in Houston, Texas. Corrine traveled to the Houston VA in John’s truck where, in contrast to her

actions in Shreveport, she claimed she was John’s wife. David and Corrine spoke with each

other by telephone nearly every day after John’s transfer to the Houston VA.2 In Houston,

Corrine consented to several surgical procedures, some of which were exploratory in nature and

carried with them a significant risk of death. Corrine remained at the hospital during John’s

entire stay.

David traveled to the Houston VA to visit John on November 21, 2009, which was his

only visit to the hospital. Although John was on a ventilator and under heavy sedation, he was

able to open his eyes and squeeze David’s hand, which led David to believe John was aware of

his presence. During this visit, the treating physician discussed John’s condition with David and

Corrine, including the possibility of executing a “Do Not Resuscitate” (DNR) order. David

recalled that he and Corrine decided the family would monitor John’s condition and make a

decision later as a family. David returned home.

David remembered speaking with Corrine on the phone the following day and being told

that John’s condition had slightly improved. David claimed that Corrine never told him in

subsequent conversations that John’s condition was any worse than he observed on

November 21. However, John’s condition was deteriorating. On December 7, 2009, Corrine

spoke with John’s treating physicians about possible end of life issues and determined that it

might be time to consider a DNR. According to hospital records, Corrine informed the staff that

she would consult with family members to make a decision. But she did not consult David.

2 David’s last direct conversation with John was before he was transported to Houston. Shortly after John

arrived in Houston, an endotracheal tube was inserted in John’s neck. Later, John was placed on a ventilator and

sedated, which prevented John from communicating verbally with David.

3

Corrine nevertheless executed the DNR the following morning, and the hospital withdrew all life

sustaining care. On December 9, 2009, John died. Corrine never informed David of her

decisions, even though they spoke on the telephone during those days. David did not learn of his

father’s death until after he died. Corrine had John cremated, and she spread his ashes over his

mother’s grave. David believed that John wished to have his ashes spread from a battleship

because he was in the Navy.

David believed Corrine made the correct decision concerning the DNR. However, he

took issue with Corrine’s nondisclosure of her decisions that deprived him of the chance to see

his father prior to his death, and her decision to spread his ashes in a manner different from what

he believed his father desired. Consequently, David filed suit against Corrine asserting, among

other causes of action not relevant to this appeal, breach of fiduciary duty and intentional

infliction of emotional distress.

After a jury trial, the jury found, in relevant part, that Corrine and David had an informal

fiduciary relationship, Corrine breached her fiduciary duty, and Corrine intentionally inflicted

emotional distress upon David.3 The jury awarded David $35,000.00 for past mental anguish for

Corrine’s breach of fiduciary duty and $0.00 for future mental anguish. It also awarded David

$1,500.00 for past mental anguish arising from Corrine’s intentional infliction of emotional

distress, and $0.00 for future mental anguish. Finally, the jury found that Corrine acted with

malice in breaching her fiduciary duty, and awarded David $10,000.00 in exemplary damages.

The parties filed various posttrial motions. After a hearing, the trial court granted David’s

motion, denied Corrine’s motions, and signed a judgment in accordance with the jury’s verdict.

This appeal followed.

LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In Corrine’s first issue, she challenges the legal and factual sufficiency of the evidence to

support the jury’s finding that she owed David a fiduciary duty.

3 At the close of evidence, the parties filed competing motions for directed verdict on various issues. The

trial court granted Corrine’s motion for directed verdict in part, concluding that there was no evidence to support

David’s conversion action, but denied her motion in all other respects. The trial court also denied David’s motion

for directed verdict.

4

Standard of Review

An appellate court conducting a legal sufficiency review considers the evidence in the

light most favorable to the verdict, indulging every inference that would support it. City of

Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). A party attacking the legal sufficiency of

the evidence to support an adverse finding on an issue for which it did not have the burden of

proof at trial must show that no evidence supports the adverse finding. Exxon Corp. v. Emerald

Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). We also apply a legal sufficiency

standard applicable to denial of a directed verdict based on a lack of evidence. City of Keller,

168 S.W.3d at 823.

The appellate court must credit favorable evidence if a reasonable fact finder could, and

disregard contrary evidence unless a reasonable fact finder could not. Id. at 807. A “no

evidence” challenge must be sustained when (1) the record discloses a complete absence of a

vital fact, (2) the court is barred by the rules of law and evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at

810. The record contains more than a mere scintilla of evidence if reasonable minds could form

differing conclusions about a vital fact’s existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983). Conversely, the record is insufficient when the evidence offered to prove a vital

fact is so weak as to do no more than create a mere surmise or suspicion of its existence. Id.

An appellate court reviews the factual sufficiency of the evidence supporting a finding by

considering and weighing all the evidence in a neutral light. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986). The reviewing court will set aside the verdict only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Id. However, the

reviewing court is not a fact finder, and it may not pass on the credibility of the witnesses or

substitute its judgment for that of the trier of fact, even if a different answer could be reached on

the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). In other

words, we may not merely substitute our opinion for that of the trier of fact and determine that

we would reach a different conclusion. Lesikar v. Rappeport, 33 S.W.3d 282, 296 (Tex. App.—

Texarkana 2000, pet. denied).

5

Applicable Law

There are two types of fiduciary relationships in Texas: (1) a formal fiduciary

relationship arising as a matter of law, such as between partners or an attorney and a client, and

(2) an informal or confidential fiduciary relationship arising from a moral, social, domestic, or

merely personal relationship where one person trusts in and relies upon another. Crim Truck &

Tractor v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992), superseded by statute

on other grounds as recognized in Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84

S.W.3d 212 (Tex. 2002). Informal fiduciary relationships are not created lightly. Schlumberger

Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997). When the evidence is disputed, the

existence of an informal confidential relationship is a question of fact. Lee v. Hasson, 286

S.W.3d 1, 14 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Fiduciary relationships juxtapose trust and dependence on one side with dominance and

influence on the other. See Tex. Bank and Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex.

1980). Whether a confidential relationship exists is “determined from the actualities of the

relationship between the persons involved.” Thigpen v. Locke, 363 S.W.2d 247, 253

(Tex.1962). “The problem is one of equity[,]” and the circumstances giving rise to the

confidential relationship “are not subject to hard and fast lines.” Tex. Bank & Trust Co., 595

S.W.2d at 508.

We consider a variety of factors to determine whether an informal fiduciary relationship

exists. See Gregan v. Kelly, 355 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). A confidential fiduciary relationship may exist where influence has been acquired and

abused or where confidence has been reposed and betrayed. Crim Truck & Tractor, 823 S.W.2d

at 594. A confidential relationship “exists where a special confidence is reposed in another who

in equity and good conscience is bound to act in good faith and with due regard to the interest of

the one reposing confidence.” See Tex. Bank & Trust Co., 595 S.W.2d at 507; see also Pope v.

Darcey, 667 S.W.2d 270, 275 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“A

confidential relationship exists where one person has a special confidence in another to the extent

that the parties do not deal with each other equally, either because of dominance on one side or

weakness, dependence, or justifiable trust on the other.”).

We also consider whether the plaintiff justifiably relied on the defendant for support, the

plaintiff’s physical and mental condition, and evidence of the plaintiff’s trust. See Lee, 286

6

S.W.3d at 14–16; Trostle v. Trostle, 77 S.W.3d 908, 914–15 (Tex. App.—Amarillo 2002, no

pet.); Hatton v. Turner, 622 S.W.2d 450, 458 (Tex. Civ. App.—Tyler 1981, no writ). However,

subjective trust alone is not sufficient to establish a confidential relationship. Thigpen, 363

S.W.2d at 253. Rather, the trust must be justifiable. See id. There must be additional

circumstances, or a relationship that induces the trusting party to relax the care and vigilance that

he would ordinarily exercise for his own protection. See R.R. St. & Co., Inc. v. Pilgrim Enters.,

Inc., 81 S.W.3d 276, 306 (Tex. App.—Houston [1st Dist.] 2001), rev’d in part on other grounds,

166 S.W.3d 232 (Tex. 2005) (discussed in unpublished portion of the opinion). In examining

whether the plaintiff’s trust is justified, we examine whether he actually relied on the other “for

moral, financial, or personal support or guidance.” Trostle, 77 S.W.3d at 915. We examine

whether, because of a close or special relationship, the plaintiff “is in fact accustomed to being

guided by the judgment or advice” of the other. Gregan, 355 S.W.3d at 228 (quoting Thigpen,

363 S.W.2d at 253).

Another factor is the length and depth of the parties’ relationship, although a long

personal relationship alone is insufficient to create a fiduciary relationship. See Lee, 286 S.W.3d

at 15; Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex. App.—Houston [14th Dist.] 1997, pet.

denied). For example, a familial relationship, while considered a factor, does not by itself

establish a fiduciary relationship. Tex. Bank & Trust Co., 595 S.W.2d at 508. Confidential

relationships may arise when the parties have dealt with each other in such a manner for a

sufficient period of time that one party is justified in expecting the other to act in his best

interest. See Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). There is no bright

line temporal requirement to establish a confidential relationship, except that in circumstances

involving a business transaction, the special relationship of trust and confidence must exist prior

to, and apart from, the agreement made the basis of the suit. See Meyer v. Cathey, 167 S.W.3d

327, 331 (Tex. 2005).

Waiver

David argues that Corrine did not preserve her sufficiency issues. This is because, his

argument continues, the court’s unobjected to jury charge, as submitted, requires only proof that

David justifiably placed trust in Corrine, and not the other factors we examine in assessing the

relationship. Moreover, David contends Corrine’s brief does not address the necessary finding

under the charge as given. We disagree.

7

The parties’ proposed charges requested essentially identical language in substantially the

same form as submitted by the court. The trial court charged the jury, in relevant part, as

follows:

Did a relationship of trust and confidence exist between DAVID SHEARER and CORRINE

SHEARER at the time of the occurrence?

A relationship of trust and confidence existed if DAVID SHEARER justifiably placed trust and

confidence in CORRINE SHEARER to act in DAVID SHEARER’s best interests. DAVID

SHEARER’s subjective trust and feelings alone do not justify transforming arms-length dealings

into a relationship of trust and confidence.

This question and instruction mirrors the standard submission for the existence of an

informal fiduciary relationship in the Texas Pattern Jury Charge. See Comm. on Pattern Jury

Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance &

Employment, PJC 104.1 (2014). In her brief, not only did Corrine attempt to negate the finding

required by the court’s charge—that David must have justifiably placed trust and confidence in

Corrine—but she attempted to negate all of the factors we examine in analyzing whether the

parties had an informal fiduciary relationship.

Moreover, Corrine filed motions for directed verdict, judgment notwithstanding the

verdict, and to disregard jury findings challenging the legal sufficiency of the evidence to

support whether an informal fiduciary relationship existed between them. See Cecil v. Smith,

804 S.W.2d 509, 511 (Tex 1991) (holding that these motions preserve legal sufficiency

challenges). She also filed a motion for new trial challenging the factual sufficiency of the

evidence to support the relevant finding on the relevant grounds. See In re C.E.M., 64 S.W.3d

425, 428 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding motion for new trial preserves

factual sufficiency issue). We hold that Corrine preserved her legal and factual sufficiency

issues. Therefore, we examine all relevant factors in determining whether Corrine owed David

an informal fiduciary duty under the specific facts presented in this case. See Power Reps, Inc.

v. Cates, No. 01-13-00856-CV, 2015 WL 4747215, at *11-12 (Tex. App.—Houston [1st Dist.]

Aug. 11, 2015, no pet.) (mem. op.) (describing the considerations in assessing informal fiduciary

relationships as factors, not elements that must all be satisfied in a particular case).

8

Informal Fiduciary Relationship

Corrine first argues that the special relationship, if any, with David did not exist prior to

and apart from the transaction at issue. As we have stated, there is no bright line temporal

requirement to establish a confidential relationship, except that in circumstances involving a

business transaction, the special relationship of trust and confidence must exist prior to, and apart

from, the agreement made the basis of the suit. Meyer, 167 S.W.3d at 331. The facts in this case

do not relate to a business transaction, and this factor is inapplicable.

A confidential relationship also can arise when the parties have dealt with each other in

such a manner for a sufficient period of time that one party is justified in expecting the other to

act in his best interest. See Ins. Co. of N. Am., 981 S.W.2d at 674. What may suffice to create

the relationship in one case may not in another case, because the problem is one of equity and

there are no hard and fast lines. See Tex. Bank & Trust Co., 595 S.W.2d at 508. Corrine argues

that David’s trust is purely subjective, he is unaccustomed to being guided by Corrine’s

judgment or advice, and he was not justified in believing that Corrine would act in his best

interest.

Corrine was David’s stepmother. She married John in 1990 when David was a young

adult. David and John, and later Corrine, worked together for many years selling automobiles.

In 2003, Corrine discovered that David used some of the company’s assets for personal

expenses. She called a family meeting to confront David on the matter, which created discord

between them. John told Corrine that he authorized the transactions. Their business struggled

due to the economy, and David left the company in 2005 to pursue other opportunities because

of his financial obligations to his wife and children. Corrine was upset with David because he

left the company when it was heavily in debt and it ultimately failed. She testified that “her heart

has never been the same.” Corrine also worked with David’s wife, Angela, in the real estate

business. Corrine developed relationship problems with Angela, resulting in Angela’s departing

the business. Corrine ceased attending Christmas parties at David and Angela’s home after the

2003 meeting. There is certainly no evidence that Corrine and David shared a confidential

relationship prior to John’s illness.

Corrine learned at the Shreveport hospital that, due to her divorce from John, she had no

authority to consent to his medical care. Contrary to what she told the Shreveport hospital staff,

Corinne represented herself to the staff of the Houston hospital as being John’s wife. Corrine

9

and David had near daily phone discussions concerning John’s condition. During John’s hospital

stay, David contended with a number of personal issues. He had a shooting accident, resulting in

the partial amputation of one of his fingers. He was an hourly employee and = missed over a

week of work recovering from the incident. David’s wife, Angela, was diagnosed with brain

cancer during this time, making it difficult for her to work. David and Angela have four

children, who at the time were from two to twelve years old. David’s family depended on his

continuing to work. Corrine knew that David had these personal issues.

David visited John at the Houston hospital on November 21, 2009. According to David,

the treating physicians visited with him and Corrine concerning John’s condition, and the

possibility of executing a DNR order at some point. David also testified that they agreed to defer

any decisions on that matter, hoping John’s condition would improve, and that they would agree

as a family. Corrine initially denied that the meeting occurred, but ultimately testified that she

simply did not recall the meeting. David testified that after he returned home, Corrine told him

that John’s condition had improved, and that the DNR was “off the table.” Corrine denied that

this conversation occurred, and contends that the telephone records conclusively prove they did

not have a discussion on the date David believed they discussed this matter. But even assuming

that the telephone records show he was mistaken about the date, the jury could credit David’s

testimony that the conversation occurred.4 The jury, as factfinder, was free to believe David, and

we cannot substitute our judgment for that of the jury. See City of Keller, 168 S.W.3d at 819,

822; see also Rubio v. Klein, No. 11-13-00189-CV, 2015 WL 4720792, at *3 (Tex. App.—

Eastland July 30, 2015, no pet.) (mem. op.).

As John’s condition continued to deteriorate, hospital staff discussed possible end of life

issues with Corrine. She told them that she would discuss the issue with her family. However,

she never informed David, even though they briefly spoke that evening. The next morning, she

executed the DNR order, and hospital staff ceased all care. John died the following day. David

did not know the sequence of events preceding his father’s death until he later read John’s

medical records.

Viewing the evidence in the light most favorable to the verdict, David and Corrine were

not close prior to John’s illness, but banded together during the family crisis. Corrine gained

control by informing the hospital staff in Houston that she was John’s wife. Corrine regularly

4 Much of Corrine’s testimony was argumentative.

10

communicated with David concerning his father’s condition during the course of his illness. A

rational jury could believe that she earned David’s trust during this time. David and Corrine

developed a pattern of communication in which Corrine gave David almost daily updates on

John’s condition. Corrine was aware of David’s personal issues, including the shooting accident

and Angela’s cancer diagnosis. Corrine admitted that she knew David relied on her to relay

updates on John’s condition. Specifically, the following colloquy illustrates her knowledge and

acceptance of his reliance.

Q My question was, you knew David was trusting you to accurately provide the

information about his father, yes or no?

A Yes.

Q And you also knew that if David’s father’s condition, John’s condition, got to the point

where death was going to happen for sure, he was trusting you to give him a call?

A I don’t know.

. . . .

Q You remember giving a deposition in this case?

A Yes.

. . . .

Q [Reading from Corrine’s deposition] Question. Did you believe David trusted that you

would tell him if his father’s condition got to a point where death was likely? Answer. Death was

always likely, but, yes. Did I read that correctly?

A Yes.

Q So you knew that he was trusting you that if that point came --

A Well, yes, sir. Everybody was trusting me. I had to tell them everything.

Then, Corrine admitted that at the critical moment, when she decided to execute the DNR

and withdraw all life support, she did not disclose her decisions to David, even though she spoke

with him on those days. A rational jury could infer that she failed to disclose this information

because, according to her admission, she harbored feelings of angst against David after their

family business failed.

Corrine relies on Trostle v. Trostle as support for her contention that her relationship with

David does not give rise to a confidential relationship. See Trostle, 77 S.W.3d at 914. In

11

Trostle, a stepson filed suit against his stepmother in part for failing to inform him that he was

not a party to a wrongful death suit based on the circumstances surrounding his father’s death.

Id. at 911. The trial court granted the stepmother’s motion for summary judgment, holding that

she and the stepson did not have an informal fiduciary relationship requiring her to act in his best

interest. Id. The appellate court affirmed, holding that the stepson could not have relied on his

stepmother for moral, financial, or personal support or guidance. Id. at 914. This was because

they were not particularly close, the stepson’s wife had personal issues with the stepmother, and

they had not spoken to each other much prior to his father’s death and not at all at the funeral.

Id. Moreover, the evidence showed that the stepmother made no representations to the stepson

concerning his status in the wrongful death suit. Id.

The facts here are distinguishable. Although David and Corrine were not close prior to

his father’s illness, there is evidence that in the time of crisis, Corrine acquired David’s trust,

perpetuated it over the course of John’s treatment, and then failed to inform David of her

decisions at the critical time, thereby purposefully depriving him of the ability to see his dying

father. Although David subjectively trusted Corrine, it did not stop there. Corrine admitted that

she knew David relied on her to accurately report information concerning his father’s condition.

She also knew of all the personal difficulties David faced during his father’s illness.

In summary, viewed in the light most favorable to the verdict, there were peculiar

circumstances inducing David to relax the care and vigilance that he would ordinarily exercise

for his own protection. See R.R. St. & Co., 81 S.W.3d at 306. Thus, the jury could rationally

have concluded that Corrine acquired influence over David and abused it, and that David’s

confidence had been reposed and betrayed. See Crim Truck & Tractor, 823 S.W.2d at 594;

Young v. Fawcett, 376 S.W.3d 209, 215 (Tex. App.—Beaumont 2012, no pet.). Moreover, a

rational jury could have concluded that David was in a position of relative weakness and Corrine

was in a position of dominance due to David’s personal issues. See Tex. Bank & Trust Co., 595

S.W.2d at 507; Pope, 667 S.W.2d at 275. Finally, the time period in question was not

particularly long. But the law requires only that the parties have the relationship long enough for

David to be justified in expecting Corrine to act in his best interest. See Ins. Co. of N. Am., 981

S.W.2d at 674. Because the issue is one of equity, under these unique facts, a reasonable jury

could have concluded that the relationship developed sufficiently during the relevant time period

to justify David’s reliance on Corrine. Tex. Bank & Trust Co., 595 S.W.2d at 508.

12

We recognize that “[r]elatives assist people of advanced years or those who have health

problems, and acts of kindness do not ordinarily give rise to fiduciary duties.” Young, 376

S.W.3d at 215. However, the jury found that a fiduciary relationship existed. Reasonable and

fair-minded jurors may differ with an appellate court on that conclusion, but on this record of

disputed facts, the “jurors must be allowed to do so.” See City of Keller, 168 S.W.3d at 822.

“Jury trials are essential to our constitutionally provided method for resolving disputes when

parties themselves are unable to do so.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d

204, 211 (Tex. 2009). Fair-minded jurors could reasonably conclude that a confidential

relationship existed, and that the confidence was betrayed.

Finally, Corrine argues as part of her factual sufficiency challenge that David knew he

had the ability to contact the doctors and obtain information concerning his father. It is true that

other than his November 21, 2009 visit, David did not independently speak with the doctors

concerning John’s care. He testified that he did not even consider whether he would have to

provide consent to the medical procedures, because he just thought the doctors and hospital staff

were doing what was necessary to improve John’s condition. A reasonable jury could infer that,

under this unique record, David contended with personal issues during the relevant time, and that

he did not take a more active role in John’s care because Corrine stepped into that role to provide

David with accurate information concerning his father’s condition. Viewing the evidence in a

neutral light, we cannot say the jury’s findings are contrary to the overwhelming weight of the

evidence and clearly wrong and unjust.

We hold the evidence is legally and factually sufficient to support the jury findings

challenged on appeal. Corrine’s first issue is overruled.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In her second issue, Corrine challenges the award of damages for intentional infliction of

emotional distress.

Standard of Review and Applicable Law

To recover for intentional infliction of emotional distress, a plaintiff must show that (1)

the defendant acted intentionally or recklessly, (2) the defendant’s conduct was extreme and

outrageous, (3) the defendant’s actions caused the plaintiff emotional distress, and (4) the

resulting emotional distress was severe. Hoffmann–LaRoche, Inc. v. Zeltwanger, 144 S.W.3d

13

438, 445 (Tex. 2004). Intentional infliction of emotional distress is a “gap-filler” tort, judicially

created for the limited purpose of allowing recovery in those rare instances in which a defendant

intentionally inflicts severe emotional distress in a manner so unusual that the victim has no

other recognized theory of redress. Id. at 447. Where the gravamen of a plaintiff’s complaint is

really another tort, intentional infliction of emotional distress should not be available, regardless

of whether the plaintiff chooses to assert the alternative claim, the plaintiff succeeds on the

alternative claim, or the claim is barred. Id. at 447-48. The tort of intentional infliction of

emotional distress is available only in those situations in which severe emotional distress is the

intended consequence or primary risk of the actor’s conduct. Standard Fruit & Vegetable Co. v.

Johnson, 985 S.W.2d 62, 67 (Tex. 1998). Where emotional distress is solely derivative of or

incidental to the intended or most likely consequence of the actor’s conduct, recovery for such

distress must be had, if at all, under some other tort doctrine. Id.

Discussion

Corrine does not challenge whether her conduct was intentional, whether it was extreme

and outrageous, or whether it caused David to suffer severe emotional distress. Rather, she

contends that IIED should not serve as a “gap-filler” tort under these facts because another tort

alleged by David could have compensated David for this harm. Specifically, Corrine argues that

David’s invasion of privacy claim for Corrine’s alleged intrusion upon his seclusion in disposing

of John’s ashes without David’s consent was an adequate theory of recovery to compensate him

for his mental anguish. Consequently, her argument continues, the trial court should not have

submitted his IIED claim to the jury.

Texas recognizes several forms of invasion of privacy, including intrusion upon a

person’s seclusion. Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994); Blanche v. First

Nationwide Mortg. Corp., 74 S.W.3d 444, 454 (Tex. App.—Dallas 2002, no pet). This type of

invasion of privacy is generally associated with either a physical invasion of a person’s property

or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.

Clayton v. Wisener, 190 S.W.3d 685, 696 (Tex. App.—Tyler 2005, pet. denied). “The core of

this claim is the offense of prying into the private domain of another, not publication of the

results of such prying.” Blanche, 74 S.W.3d at 455.

Here, the basis for David’s intrusion upon seclusion claim was Corrine’s usurping

David’s right to make medical decisions on John’s behalf and deciding to execute the DNR and

14

withdraw life support.5 For his IIED claim, David pleaded the same facts as his intrusion upon

seclusion claim. But he also pleaded another set of facts to support his IIED claim—Corrine’s

dispersion of his father’s ashes in a manner inconsistent with his wishes caused David severe

emotional distress.

Separately, David pleaded that Corrine’s action in spreading his father’s ashes supported

a conversion theory. At a pretrial hearing on Corrine’s special exceptions, the parties understood

that David contended that his IIED theory pertaining the disposition of his father’s ashes was a

“gap-filler” in the event that the trial court found that his conversion theory was invalid. At the

close of evidence, the trial court granted Corrine’s motion for directed verdict on the conversion

theory. The trial court reasoned that Texas law recognizes that human remains are treated as

quasi-property, and that the next of kin has a right to immediate possession of the remains for the

purpose of directing the burial. See Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377,

384-85 (Tex. 2012). The court also recognized that Texas law authorizes the recovery of mental

anguish damages without physical injury for negligent mishandling of human remains or tissues,

typically against morticians, funeral homes, and cemetery management companies. See id.

However, neither the procedural vehicle nor the cause of action has been clearly delineated. See

id.

The trial court here held that the conversion action was not an appropriate means of

redress because Texas law does not yet recognize a conversion claim for human remains.

Additionally, the court held that a conversion claim requires proof of the value of the property at

the time of conversion, but there is no evidence proving the value of John’s remains. David does

not challenge the disposition of his conversion claim in this appeal. The trial court submitted the

IIED claim to the jury over Corrine’s objection. Implicitly, the trial court concluded that IIED

was an appropriate “gap-filler” tort. David argued to the jury that his IIED claim related only to

the emotional distress he suffered from the disposition of John’s remains, not the ground he

pleaded that mirrored the intrusion upon seclusion theory.

Corrine argues only that the intrusion upon seclusion claim would have been an

appropriate tort to compensate David for his emotional distress related to the disposition of his

father’s ashes. And we have stated that the core of intrusion upon seclusion is the offense of

5 David had the authority to make medical decisions on John’s behalf. See TEX. HEALTH & SAFETY CODE

ANN. § 166.039(b) (West Supp. 2015).

15

prying into the private domain of another. See Blanche, 74 S.W.3d at 455. Therefore, we hold

that the intrusion upon seclusion tort is not an appropriate vehicle to compensate David under

these facts. Moreover, the trial court held that David had no basis to support his conversion

claim. Although the supreme court has authorized a common law right to recover mental

anguish in mishandling human remains in certain circumstances, it has not clearly identified the

appropriate cause of action in circumstances like these or its elements.6 See Evanston Ins. Co.,

370 S.W.3d at 384-85. Consequently, IIED is an appropriate cause of action under the unique

procedural posture and circumstances of this case.

Finally, Corrine argues that Priebe v. A’Hearn supports her argument. See generally

Priebe v. A’Hearn, No. 01-09-00129-CV, 2011 WL 1330808 (Tex. App.—Houston [1st Dist.]

Apr. 6, 2011, no pet.) (mem. op. on reh’g). In Priebe, a stepdaughter filed suit against her

stepmother under an IIED theory for, among other things, failing to include her in the discussion

concerning the treatment of her father’s remains. See id. at *6. Importantly, the appellate court

held that the stepmother, as the surviving spouse, had the right to control the disposition of the

stepdaughter’s father’s remains, and consequently, she had no duty to inform her stepdaughter of

her father’s death or the disposition of his remains.7 In contrast, David had a higher priority to

dispose of John’s remains than Corrine because she and John were divorced.8 See TEX. HEALTH

& SAFETY CODE ANN. § 711.002(a) (West Supp. 2015); In re Estate of Woods, 402 S.W.3d 845,

849 (Tex. App.—Tyler 2013, no pet.). Therefore, Priebe is distinguishable.

Corrine’s second issue is overruled.

6 David had the right to dispose of John’s remains. See TEX. HEALTH & SAFETY CODE ANN. § 711.002(a)

(West Supp. 2015). But Section 711.002 does not expressly authorize mental anguish damages when the decedent’s

remains are disposed of in a manner inconsistent with his desires. See id.

7 The appellate court also held that the stepmother’s conduct, although rude and unkind, was not extreme or

outrageous as a matter of law. See Priebe, 2011 WL 1330808, at *7. However, Corrine does not rely on Priebe for

that point, or otherwise argue in her brief that the evidence does not support the jury’s finding that her conduct was

extreme or outrageous.

8 Section 711.002(a–1) sets out a procedure whereby a person’s right to control the disposition of the

decedent’s remains terminates ten days after the decedent dies by virtue of a statutory presumption that the person is

unable or unwilling to act. We note that this provision of the statute was added in 2011, approximately two years

after John’s death. Act of May 17, 2011, 82d Leg., R.S., ch. 532, §§ 2, 17, 2011 Tex. Gen. Laws 1311, 1318.

Accordingly, the version of the statute in existence at the time of John’s death did not contain a mechanism whereby

David’s right to control the disposition of his father’s remains would terminate after the passage of the specified

number of days.

16

DISPOSITION

Having overruled Corrine’s first and second issues, we affirm the trial court’s judgment.

GREG NEELEY

Justice

Opinion delivered May 27, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 27, 2016

NO. 12-14-00302-CV

CORRINE AUGUSTINE NICHOLS HILL SHEARER,

Appellant

V.

DAVID SHEARER, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF

THE ESTATE OF JOHN WILLIAM SHEARER, III,

Appellee

Appeal from the County Court at Law No. 2

of Gregg County, Texas (Tr.Ct.No. 2011-1919-CCL2)

THIS CAUSE came to be heard on the oral arguments, appellate record

and briefs filed herein, and the same being considered, it is the opinion of this court that there

was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged

against the Appellant, CORRINE AUGUSTINE NICHOLS HILL SHEARER, for which

execution may issue, and that this decision be certified to the court below for observance.

Greg Neeley, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.